News 7.1.11

Living Wills Revived

by William HT Frey and Jenna H. Keller
House Bill 10-1025 (the "Act") was recently passed by the Colorado General Assembly and is expected to be effective August 11 of this year. The Act substantially rewrites the existing law concerning what are commonly called "living wills." If you currently have a living will, the Act will not change the validity of that document, or require you to execute a new living will.

A living will (sometimes called a medical declaration or declaration as to medical treatment) is a means of allowing physicians to make end of life decisions about the withholding or withdrawal of life-sustaining medical procedures if a person is terminally ill and not able to make decisions on his or her own. It has been our experience that many people decide not to utilize a living will because they want the decision concerning the withdrawal of life sustaining procedures to be left up to the family or an agent designated in a medical power of attorney.

The use of the living will has become restricted to cases in which a person does not want to burden the family with making the choice, feels that the family may not be able to make a choice, or is concerned that there may be a dispute among family members that would result in division. The Act has made changes to the law that may make the living will a tool that is used more frequently in the future.

One of the problems with the old law was that it was not coordinated with the medical power of attorney. It appeared that a living will would be given effect even over the objections of an agent under a medical power of attorney.

The Act now specifically authorizes the use of a statement in either the living will or the medical power of attorney that the agent will have the authority to override the provisions of the living will. This is a critical improvement that will give many people comfort that the family can be involved in the decision.

You should review your existing documents if this is a concern, because many existing medical powers of attorney will not have the override power (because it was not clear such a power could be granted), and because it still appears the agent under a medical power of attorney will not have the authority to override the decision of the physicians unless that power is expressly granted in either the living will or the medical power of attorney. It will be safest to have this override power in the living will if you want to grant that power (in case the agent is not immediately available) in order to assure that your wishes are implemented.

The other significant change is to add "persistent vegetative state" to "terminal condition" as the basis for implementing a living will. The old law left uncertainty as to whether a terminal condition included a persistent vegetative state. Because we know that some of our clients consider a persistent vegetative state as a condition for which they may not want life sustaining procedures withdrawn (based on their ethical, religious, or medical beliefs), this now creates uncertainty for existing living wills.

Those living wills are still valid under the Act, but the Act has changed the definitions to include a persistent vegetative state as the basis to withdraw treatment. If this is a concern to you, then you may want to update your living will to make your wishes clearly known. If you sign a new form, you need to be aware that the definition has been broadened and take that into account when executing a new living will.

The Act now allows the living will to include provisions for individualized medical directions. This will allow the person to better define their wishes and to cover medical treatments for their individualized medical conditions. Someone with diabetes, COPD, or cancer will be better able to define care in relation to the anticipated disease progression and make decisions if they want to fight other conditions aggressively or allow some other disease to take its course. This could include decisions not to treat when the living will would not otherwise be in effect because a terminal condition or persistent vegetative state has not occurred.

Last, the Act no longer has a model form. The existing forms that are largely based on the old law (and many times just copies of the model form contained in the old statute) will not be able to take advantage of some of the improvements in the Act.

Because there is no longer a model form, you will want to be sure to consider carefully the language of any form you sign to be sure you understand its implications and the options that are open to you. It is much better to plan while you are not facing a hospital admission or emergency.

We are willing to work with you to consider if your existing documents need to be revised and to work with you to implement a living will tailored to your personal desires.

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